Summary: Ahmet İnsel’s article titled “Crimes Against Humanity In Israel and Palestine” discusses Hamas’ attack on Israel on the 7th of October 2023 and the ensuing conflicts. The article argues that Hamas’ attack and Israel’s actions in response can be considered war crimes and crimes against humanity under international law. At the same time, it argues that the concept of an act of terrorism is inadequate and that more precise definitions such as the crime of aggression, war crimes and genocide should be used instead. It also emphasises that both sides have responded with inhumane acts instead of resolving the conflicts and that this situation makes the peace process more difficult.
…
Hamas armed forces, mainly the Izzedin al-Qassam brigades, managed to infiltrate Israeli territory for the first time, briefly occupying certain military positions, and killing approximately 1,400 people, including 300 soldiers. Among the civilian casualties were young children, women, the elderly, and migrant workers. Moreover, Hamas took more than 200 civilians hostage, including infants, children, and the elderly. According to Israeli sources, about 1,500 Hamas militants lost their lives during and after the assault. In this environment of de facto war, the premeditated and planned entry of armed Hamas militants into homes to deliberately kill civilians constitutes war crimes without dispute. The fact that the perpetrators of these crimes are deceased does not alter the fact that those who ordered and directed them are equally complicit and responsible.
In the days following October 7, the assertion that these actions, organized and directed by Hamas, were acts of terrorism, was quickly emphasized not only by Israel but also by many Western governments, citing that numerous Western countries recognize Hamas as a terrorist organization. The Israeli army’s bombings of civilian targets in Gaza, the deaths of thousands of people and counting, as well as the imposition of a severe blockade that threatens the right to life of over two million people were later denounced as state terrorism by Palestinian organizations and supporters of the Palestinian cause.
In this great humanitarian tragedy, where accusations of terrorist acts, terrorist organizations, and state terrorism abound, it is essential not to dwell on the rather vague concept of terrorism, but to refer to the repertoire of clearly defined acts as crimes under current international law. The concepts in this repertoire are not terror, terrorism, or terrorist organization, but rather aggression crimes, war crimes, crimes against humanity, and genocide.
Since October 7, the mutual attacks, bombings, and massacres targeting civilians, committed by Hamas and other Palestinian organizations, on the one hand, and the Israeli Defense Forces, on the other, are unquestionably war crimes. The assassination and hostage-taking of hundreds of civilians in the kibbutzim, the deaths of thousands of civilians in Gaza due to bombings, the bombing of schools, hospitals and places of worship, the forced displacement of nearly a million people, and the fact that many of these crimes were committed in a premeditated and large-scale manner allow for considering many of them as crimes against humanity.
On the other hand, it is important to recall that terrorism and terrorist offences, which are included in the national criminal law of some countries (such as anti-terrorism laws in Turkey), do not have a place in international law. Terrorism is a concept widely used for political purposes, and its definition and scope vary widely. For instance, in autocratic regimes like Iran, Russia, China, and even Turkey, those who oppose the regime or the government in power can be labeled as terrorists and sentenced to extremely severe punishments. Turkey ranks among the highest globally for the number of people tried for “terrorism” charges and sentenced to lengthy prison terms, even if they have not committed, participated in, or supported any acts of violence. Today, not only in authoritarian regimes but also in democratic countries, where the rule of law prevails, the “fight against terrorism” is used as one of the primary justifications to restrict fundamental rights and freedoms and target opponents. Therefore, although the October 7th attack by Hamas aimed to create an atmosphere of terror in Israeli society and thus exhibits characteristics of a terrorist act, these massacres – the deliberate killing of civilians – are war crimes because they fundamentally occur within the context of an ongoing war. This qualification is a requirement for these crimes to be considered under international law. They can also be classified as crimes against humanity if it can be proven that they constitute a widespread and systematic attack on a civilian population.
…
Originating in 1948 with the displacement of certain Palestinians from their homeland and evolving into a prolonged conflict, this situation reflects the Israeli policy of occupation and annexation that has been in effect since 1973. It has now escalated to a point where the opposing parties perceive each other as less than human. Hence, achieving a two-state solution or a federation of two regions within one state is considerably more complex today than it was in the past. Furthermore, the presence of two million Palestinians living in Israel and seven hundred thousand Israelis living in the occupied territories of the West Bank poses a challenge to implementing either solution without involving new waves of immigration and displacement. Hamas, which has embraced the idea of eliminating Israel, and radical nationalist-religious movements that emphasize Israel’s claim to Greater Israel based on the Torah, ranging from the Mediterranean to the Jordan River, share little common ground except for their mutual rejection of potential solutions.
…
Beyond the enduring occupation of Palestinian territories and the ongoing systematic policy of confiscating Palestinian land and erasing Palestinian identity from the region, the regime governing the occupied territories, often referred to as “apartheid” by numerous Israeli journalists, academics, and politicians holds the greatest share of responsibility in this immense human tragedy. Additionally, the Palestine Liberation Organization (PLO) leadership, characterized by corruption, nepotism, and authoritarianism, shares a significant portion of the responsibility for the lack of a solution to the Palestinian issue. The fact that Hamas, unlike the PLO, makes the elimination of the State of Israel its primary goal, refusing in principle to engage in peace negotiations with Israel, undermining any measures taken in that direction, and considering anyone living on Israeli territory as an occupier, thus making it legitimate to target them, also carries an equally important responsibility for the tragic stage that the problem has reached today.
The Hamas charter, adopted in 1988, contains the following phrase attributed to the founding leader of the Muslim Brotherhood, Hassan al-Banna: “Israel exists and will continue to exist until Islam obliterates it, just as it obliterated others before it”. However, until recently, the Netanyahu administration considered Hamas as a lesser evil and a more manageable option to create a rift with the PLO. All of this is exacerbated by the defeats and marginalization of Israeli and Arab-Palestinian left-wing factions—events that have created a wide range of political and social opportunities for radical fundamentalists and racist groups on both sides.
…
Today, a spiral of violence, hatred, and fear is engulfing the world, growing stronger and wider. To prevent our social and political imagination from falling prey to this dreadful development, to find ways to stop this vicious cycle of extreme violence, we must not get absorbed in the escalating mutual accusations of terrorism. Instead, we should support and promote the initiatives and actions of those who are trying to articulate the concrete conditions for ending this extreme violence and who are fighting for peace, sometimes in the most challenging circumstances. In any case, if we have not lost faith in our shared humanity…
Karşılıklı İşlenen İnsanlık Suçları
Crimes Against Humanity in Israel and Palestine (republished in English)